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Ozark embroiled in controversy over cross in Finley River Park holiday lights display

The city of Ozark said Tuesday in a news release that it would take down a cross from the city's holiday lights display in Finley River Park, but shortly afterward reversed course, saying it was too soon to make a decision. In their earlier news release announcing that the cross would come down, Ozark city officials said the choice — now walked back — was prompted by a letter of complaint sent by the Freedom From Religion Foundation, a national advocacy group devoted to the constitutional separation of church and state.(Photo: Nathan Papes/News-Leader)Buy Photo

A couple of hours before, the mayor sent out a Facebook post on his campaign page noting that "the controversy about the lighted Cross in the park is not over."

The mayor wrote, "The cross is NOT down and will be lighted tonight. We have heard your thoughts and agree with them. We are now assessing all our options for addressing this situation. Stay tuned."

Gardner said he had received possibly "hundreds" of phone calls, texts and other messages from the Ozark community.

"Everybody wants it up," Gardner said. "One lady is crying. This is part of Ozark. This is Christian County, for Pete's sake."

Gardner also noted, "This is a complicated constitutional issue. It's sure not going to be solved by the peoples' court."

This photo of a steel cross at Finley River Park in Ozark accompanied a letter sent to Ozark city officials by the Freedom From Religion Foundation on Nov. 30. On Dec. 11, Ozark announced it would remove the cross to comply with U.S. Supreme Court rulings on the display of religious imagery on public property.(Photo: Submitted image)

In their earlier news release announcing that the cross would come down, Ozark city officials said the choice — now walked back — was prompted by a letter of complaint sent by the Freedom From Religion Foundation, a national advocacy group devoted to the constitutional separation of church and state.

Initially, city officials wrote, "It is the position of the City of Ozark that leaving a religious symbol on public property, in this case a cross, will result in a lawsuit that we will not win as the other communities throughout the U.S. and our own region have tried this and lost."

But the mayor of Ozark said it was too soon to state such a position before he and the elected board of aldermen could have their say.

Gardner acknowledged that church-and-state legal battles are often a losing proposition for municipalities.

"The city can’t afford to buy two new police cars the police department wants," he said, "so how can we afford to fight an expensive lawsuit?"

He added, "it's clearly — the cross is clearly a Christian symbol. I don't know if you're a Christ-follower or not, but this really hacks me off."

This is not the first controversy of its type in the Ozarks.

In 1999, a federal judge ordered the city of Republic to remove a Christian ichthus, or fish symbol, from the city's flag. A lawsuit brought by the American Civil Liberties Union never went to trial.

No lawsuit has been filed in the current matter of the Finley River Park cross.

The Freedom From Religion Foundation, based in Madison, Wisconsin, provided the News-Leader with a copy of its two-page letter, along with two photographs of the cross at Finley River Park.

"We were contacted by a concerned city resident," states the foundation's letter, signed by Freedom From Religion Foundation Legal Director Rebecca Markert.

The letter goes on to cite multiple U.S. Supreme Court opinions in support of its stance, among them one written by Justice David Souter, who was appointed by President George H.W. Bush in 1990 and retired from the court in 2009.

"The Latin cross ... is the principal symbol of Christianity around the world, and display of the cross alone could not reasonably be taken to have any secular point," Souter wrote in 1995.

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The city of Ozark said Tuesday in a news release that it would take down a cross from the city's holiday lights display in Finley River Park, but shortly afterward reversed course, saying it was too soon to make a decision. In their earlier news release announcing that the cross would come down, Ozark city officials said the choice — now walked back — was prompted by a letter of complaint sent by the Freedom From Religion Foundation, a national advocacy group devoted to the constitutional separation of church and state.(Photo: Nathan Papes/News-Leader)

Before Ozark's mayor made his statement indicating that the cross would stay aloft and alight, Ozark officials caved, noting in their first news release, "We must acknowledge the Federal Constitution and its interpretation by the U.S. Supreme Court."

When asked why the city sent out a public statement that was quickly disavowed by its mayor, Gardner said he did not know.

The city's public-information officer, Samantha Payne, sent a second news release at 4:40 p.m.

It read, "We released a press release earlier with the facts as they have been presented to us thus far. As the day unfolded and citizens commented on this topic, we have determined that in the best interest of all parties we shall continue working through the legalities of the situation. Therefore, the cross in the Finley River Park will remain in place until a further due diligence can be completed regarding this matter."

Beginning in 1980, the Supreme Court has addressed multiple cases questioning the constitutionality of religious displays on public property, according to a report by the nonpartisan Pew Research Center on Religion and Public Life.

In 1980, Pew reported, the court scrutinized a Kentucky law requiring that state's public schools to display the Ten Commandments.

The nation's highest court determined that the Kentucky measure amounted to government sponsorship of religion.

As such, it was a violation of the First Amendment's Establishment Clause.

This photo of a cross at Finley River Park's holiday lights display in Ozark was included with an "educational letter" from the Freedom of Religion Foundation sent to Ozark city officials on Nov. 30. Ozark said Dec. 11, 2018 that it would take the cross down in order to comply with U.S. Supreme Court precedent on religious displays on public property.(Photo: Submitted image)

The First Amendment protects freedom of religion and freedom of speech, and the Establishment Clause prohibits government from establishing a religion, from favoring one religion over another, or from favoring religion generally over nonreligious beliefs.

Since that time, most of the Supreme Court's opinions have generally borne out this precedent.

Pew noted that "disputes over seasonal religious displays have themselves become an annual holiday tradition."

Before the mayor came out against taking down the Finley River Park cross, the Christian County Headliner-News reported that phones have been ringing quite a bit at Ozark city hall since the cross's lights were turned off.

"People are rather upset about it," Ozark City Administrator Steve Childers told the newspaper.

Childers noted that fighting a potential lawsuit over a steel cross in the park could prove costly and that being "good stewards of the public dollar" was a key consideration in making the initial announcement that the cross would be deactivated.

“We’re a growing community and we’re becoming more diverse," Childers said. "Obviously, people have different beliefs about holidays."

Rebecca Markert, legal director for the Freedom From Religion Foundation, told the News-Leader Tuesday that her group gets involved when they learn about a "constitutional violation" from one of her group's 32,000 members (of which 375 are Missouri-based) or another member of the public.

"That's what happened here," she said.

When asked for the foundation's response to those who question how a cross on public property could be problematic in a majority-Christian community, Markert said, "Well, I always like to reference Justice Sandra Day O'Connor when she wrote an opinion (on these issues). She said that we do not count heads before we enforce the First Amendment, and that's really the crux of our constitution."

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The city of Ozark said Tuesday in a news release that it would take down a cross from the city's holiday lights display in Finley River Park, but shortly afterward reversed course, saying it was too soon to make a decision. In their earlier news release announcing that the cross would come down, Ozark city officials said the choice — now walked back — was prompted by a letter of complaint sent by the Freedom From Religion Foundation, a national advocacy group devoted to the constitutional separation of church and state.(Photo: Nathan Papes/News-Leader)

Markert added, "It doesn't matter if 99 out of 100 people think (a cross on city land) is OK. That's not the way our system works... We live in a country with a lot of religious diversity because our government is largely free from religion."

Markert noted her organization's phones were lit up with calls from people upset about the letter sent to Ozark and that her fellow staff have reported some unspecified threats.

Nativity scenes and other Christian imagery are common on public and private property in the Ozarks during the holiday season.